Court Lets Sleeping Dog Lie; Reverses Conviction For Failure To Confine Dog

The Twelfth District Court of Appeals has reversed a conviction for failure to confine a dog.  The court held that a dog warden, who approached a sleeping dog in the owner’s yard, cannot then charge the owner with failure to confine a dog.

The case is State v. Jackson, 2012-Ohio-5843.

In October, 2011, a Butler County dog warden, found a Great Pyrenees lying alone under a tree on the front side yard of the defendant’s property.  There was no visible fence confining the dog.

The Officer knocked on the defendant’s door, and testified that the dog then came charging at her.  The Defendant provided proof of a license for the dog.  The officer issued the defendant a warning for failure to display the license and a ticket for failure to confine his dog.

The Defendant was convicted of failure to confine a dog.  He was fined $25.

The relevant statute, R.C. 955.22(C), provides:

Except when a dog is lawfully engaged in hunting and accompanied by the owner, keeper, harborer, or handler of the dog, no owner, keeper, or harborer of any dog shall fail at any time to do either of the following: (1) Keep the dog physically confined or restrained upon the premises of the owner, keeper, or harborer by a leash, tether, adequate fence, supervision, or secure enclosure to prevent escape; (2) Keep the dog under the reasonable control of some person.

The defendant argued that no evidence was introduced to show that the dog left the yard on the date in question (or any other date), and that the dog was professionally trained to remain on the property to protect livestock.

The court began “by noting that the statute contains multiple ambiguities”  and “that the phrase, ‘reasonable control of some person,’ is not well-defined .

The court concluded that the statute was not violated because the dog was under the reasonable control of the defendant.  The court believed that evidence indicating “that the dog was professionally trained to remain in one location, has never left the property and was not seen by the warden outside the property” was sufficient to satisfy the statute.  This is especially true because, as the court noted, “the dog was not out of control, but rather was lying asleep beneath a tree in appellant’s yard.”

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